Citation Nr: 9935311
Decision Date: 12/20/99 Archive Date: 12/23/99
DOCKET NO. 94-02 776 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Chicago, Illinois
THE ISSUE
Entitlement service connection for post-traumatic stress
disorder (PTSD).
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
Christopher Maynard, Counsel
INTRODUCTION
The veteran had active service from November 1968 to November
1970.
This matter initially came before the Board of Veterans'
Appeals (Board) on appeal from the April 1993 rating decision
of the St. Petersburg, Florida RO. A personal hearing was
conducted before the undersigned member of the Board sitting
at that RO in February 1994. The Board remanded the appeal
to the RO for additional development in February 1996. The
record reflects that the veteran has moved several times
during the pendency of the appeal; the case has been received
from the Chicago, Illinois RO, within whose jurisdiction he
is now residing.
Historically, the Board notes that service connection for
PTSD was initially denied by the RO in May 1992. However,
the veteran was not notified of this decision. As the
veteran was not notified, his claim was still pending when he
requested to reopen the claim in February 1993. By rating
action in April 1993, the RO denied service connection for
PTSD, and the veteran then perfected a timely appeal.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained by the
RO.
2. The veteran did not engage in combat with the enemy
during military service.
3. Objective evidence of an in-service stressor has not been
demonstrated.
4. The veteran does not currently have PTSD as a result of
wartime experiences in Vietnam.
CONCLUSION OF LAW
PTSD was not incurred in or aggravated by service.
38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. §§ 3.303,
3.304(f) (1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Factual Background
The veteran's personnel records indicate that he was assigned
to the 661st Ordnance Company (661st Ord Co) as an ammunitions
store helper while serving in Vietnam from April 17, to
November 10, 1970. The veteran was not authorized to wear
the Combat Infantry Badge and did not receive any awards or
decorations denoting combat.
The veteran's service medical records, including his
separation examination in November 1970, are negative for any
complaints, findings, or diagnosis referable to any
psychiatric problems. The veteran's psychiatric status on
examination at separation was normal.
The veteran made no mention of any psychiatric problems on
his original application for VA benefits received in
September 1973.
VA medical records show that the veteran was admitted to
Medical Services with a history of substance abuse, mainly
heroin, in September 1973. The veteran was reported to have
been in a state run Methadone program for the previous eight
months. The records show no complaints or history of
psychiatric problems related to Vietnam or a diagnosis of
PTSD. The veteran tested positive for morphine when he
returned from an emergency pass in October 1973, and was
given an irregular discharge. The diagnosis at discharge was
drug abuse - heroin.
VA medical records show the veteran was hospitalized in
November 1974, and twice in July 1975 due to drug related
problems. The records make no mention of any problems
relating to service in Vietnam, and no diagnosis of PTSD.
The diagnoses for each period of hospitalization included
drug dependence - heroin. He was also hospitalized from
August to September 1975 for vocational rehabilitation; a
diagnosis of occupational maladjustment was made.
When examined by VA in October 1975, and again in June 1981,
the veteran made no mention of any problems related to his
service in Vietnam, and no pertinent psychiatric symptoms or
diagnosis of PTSD was noted.
VA medical records from 1981 to 1984 show treatment for
various medical problems including substance abuse and
related problems. The records do not show any complaints or
psychiatric problems related to Vietnam and no diagnosis of
PTSD was indicated.
On VA psychiatric examination in March 1984, the veteran
reported that he was nervous and perspired off and on since
his discharge from service in 1970. The veteran reported
that he was frequently under stress, was restless at times,
and often irritable. He reported difficulty sleeping, and
had dreams of being in the Army and of killing people. On
examination, the veteran reported that he was not mixed up
and could think clearly, though he had occasional difficulty
with concentration. His stream of speech was somewhat
decreased in rate, but relevant and coherent. His affect was
decreased, and his memory for recent and remote events was
poor. The veteran reported that he had been forgetful for
the past couple of years, and felt that people had it in for
him, were watching him, and that they were talking about him.
His orientation was good in all spheres. The veteran was
distrustful and suspicious of people, and expressed ideas of
references for the past 10 years. He also reported a history
of auditory hallucinations, but not during the past several
months, and that he had attempted suicide several times. He
denied any homicidal ideations or feelings of guilt. The
veteran reported a fear of people, of life, and of dying. He
also reported feelings of insecurity. The examiner commented
that he found no objective neurological findings to indicate
any organic involvement of the central peripheral nervous
system. He concluded that the veteran had both schizophrenic
symptomatology and affective symptomatology. The diagnoses
included schizoaffective disorder and heroin dependence.
VA records reflect hospitalization in 1987 after the veteran
ingested an overdose of sleeping pills. Diagnoses of multi-
substance abuse, adjustment disorder with depressed mood, and
rule out personality disorder were made.
A claim of service connection for PTSD was received from the
veteran in February 1992.
In March 1992, the veteran was requested to provide the RO
with specific information concerning his duty assignments and
any stressful incidents that he experienced in Vietnam so
that additional development could be undertaken to verify his
stressors.
When examined by VA in April 1992, the veteran reported that
he was not involved in combat in Vietnam, and that his duty
assignment was that of an ammunition support for helicopters.
The veteran reported that he was responsible for the death of
other soldiers while in Vietnam because he was not paying
attention while on guard duty. He claimed that most of the
time he was "very high." He was vague when talking about
his military training and post military activities. The
veteran reported a long history of depression and substance
abuse. He was well oriented, and denied any auditory,
visual, gustatory, hypnopompic, or hypnagogic hallucinations,
except when under the influence of drugs. The veteran denied
any suicidal or homicidal ideations, but did express some
paranoid thoughts. His memory was good but his associations
were somewhat slow. His mood was anxious and his cognition
appeared to be fairly intact. His judgment and insight were
poor. The examiner indicated that he could not offer a
diagnosis of PTSD, and recommended that, if the veteran was
willing, he should be admitted for additional observation.
On general medical examination, also conducted at this time,
a diagnosis of depressive reaction was made.
The veteran was evaluated and admitted to a VA medical
facility in July 1992 for participation in the PTSD program.
The Discharge Summary report in October 1992 referred to the
veteran's self-reported history that he was an ammunition
specialist and spent one tour of duty in Vietnam where he was
involved in "combat situations." On mental status
examination, the veteran was alert, cooperative, and in no
acute distress. He was well oriented, his mood was euthymic,
and he denied any suicidal or homicidal ideations. The
veteran denied any auditory or visual hallucinations. His
memory was grossly intact, and the rest of his cognitive
functions were within normal limits. The veteran
participated in the different activities and had good
attendance in general. The examiner indicated that
psychological testing showed multiple substance abuse, PTSD,
and avoidant - borderline mixed personality disorder. The
diagnoses included PTSD.
In a statement received in February 1993, the veteran
reported that he was in a supply unit while serving in
Vietnam, and that his unit came under attack and sniper fire
from Viet Cong. He reported that the fear was so great that
you could "cut it with a knife." The veteran reported
suffering from lack of sleep, nightmares, problems keeping a
job, and problems dealing with authority since coming back
from Vietnam.
A VA Discharge Summary report for hospitalization in February
and March 1993 indicated that the veteran was "in combat"
in Vietnam, and had a long history of substance abuse. The
diagnoses included PTSD.
In his substantive appeal received in August 1993, the
veteran reported that his stressors included artillery fire
nightly, automatic weapons fire while on guard duty, jets
dropping Napalm, booby trapped roads, and an incident in
which three soldiers were killed while on guard duty at a
site not far from where he was on duty.
A VA Hospital Summary report showed that the was hospitalized
for 66 days from August to October 1993 for schizophrenia and
to rule out major depression and alcohol dependence. The
veteran reported suicidal and homicidal thoughts after
learning that he was HIV positive two weeks earlier. The
diagnoses included schizophrenia, rule out major depression
with suicidal and homicidal ideations.
At a personal hearing before the undersigned sitting at the
RO in February 1994, the veteran testified that he had
trouble sleeping, recurrent nightmares, and startle response.
He described his recurrent nightmares as involving him
holding his own decapitated head and cursing at himself;
seeing three soldiers with their throats cut, being shot
numerous times, and being frozen in bed. The veteran
reported that he had no friends and preferred to be alone.
He stated that he did not go to the movies and spent most of
his time watching TV. The veteran testified that since
learning that he was HIV positive, he had been more receptive
to talking about his Vietnam experiences.
A VA Psychological Assessment in June 1995 indicated that the
veteran had difficulty completing the Minnesota Multiphasic
Personality Inventory-2 (MMPI-2) test because of anxiety,
impaired attention span, and a rather marginal reading
ability. The psychologist indicated that the most common
diagnosis associated with the veteran's profile was paranoid
schizophrenia. He also noted that the veteran scored on the
clinical scales for PTSD and that he had been coping with
extreme stress due to the discovery of his HIV status and
Vietnam "combat" experiences. The diagnoses on Axis I
included PTSD and major depressive disorder. On Axis II,
personality disorder not otherwise specified with schizoid,
schizotypal, paranoid, and avoidant features.
In a letter dated in March 1996, the veteran was requested to
provide the RO with additional information, including
detailed information concerning the stressor events that he
experienced in Vietnam.
When examined by VA in November 1995, the examiner noted that
he did not have the veteran's claims file for review, and
that a history was obtained from the veteran, which was
therefor subject to the "usual errors." The report noted
that veteran's current symptoms included difficulty sleeping,
irritability, thoughts of suicide, isolation, and startled
response. The veteran did not describe any incidents from
Vietnam or report any specific recurring nightmares. The
diagnosis was PTSD. Neither the stressors relied on for
making such diagnosis, nor any supporting rationale was
provided.
In a statement received in March 1996, the veteran reported
that he saw Viet Cong prisoners being thrown out of
"American" helicopters while being interrogated, and that
he was on guard duty when three soldiers were found dead with
their throats cut. The veteran reported that he dreamed of
these incidents often.
VA medical records associated with the claims file in July
1996, show treatment for various medical problems from 1993
to 1995. The records do not show any specific treatment for
psychiatric problems.
VA medical records associated with the claims file in August
1996, show treatment for various medical problems in 1995 and
1996. Various diagnoses were offered for the veteran's
psychiatric symptoms, including depression not otherwise
specified, Benzodiazepine dependence, bipolar disorder, and
PTSD.
An audiotape received from the veteran in October 1996, and
was transcribed by VA for the record. The veteran reported
that while walking to the mess hall in Vietnam one day, he
observed a "greenish color helicopter" which "wasn't an
Army olive drab helicopter" hovering over a nearby hill.
The veteran stated that he saw someone fall from the
helicopter and thought that they were on maneuvers. However,
a parachute didn't open. A second person came out of the
helicopter, and again the parachute didn't open. When he
told another soldier of the incident, the soldier replied
that they were just interrogating prisoners. The veteran
also reported that while covering for two other soldiers who
left their guard duty post one night to go to town, the
officer on duty (OD) drove up in a jeep to check on them.
The veteran said that he recognized the officer as the OD,
because of the insignia on his helmet and armband. The
officer did not know the password and, after being confronted
by the veteran with his weapon, asked if everything was okay
and then left. The next morning, the veteran learned that
three other soldiers on guard duty down the line had their
throats slashed during the night. The veteran state that he
thought that maybe the OD was really a Viet Cong and that he
could have prevented the deaths of the three soldiers if he
had just held him at gun point and called for help.
A report from the Director, Environmental Support Group
(ESG), received in January 1997, indicated that the area of
Chu Lai, the base camp location for the veteran's listed
unit, received numerous enemy attacks during the period the
veteran was in Vietnam which resulted in several causalities.
However, the records did not mention the 661st Ordnance
Company during these incidents. The report indicated that
additional information, such as the names of the individuals
reportedly killed while on guard duty, and/or their specific
unit, must be provided for further research. The report
suggested that morning reports for the veteran's unit be
obtained and used to identify the names of any casualties.
By letter dated in January 1997, the veteran was requested to
provide the names, unit designations, and any other units
involved in the guard duty incident so that additional
research could be undertaken.
An ESG report received in February 1997 provided essentially
the same information as the report received in January 1997.
In April 1997, the veteran was again asked to provide more
detailed information concerning his stressors in Vietnam so
that additional development could be undertaken.
Copies of morning reports from the 661st Ordnance Company for
several days during the months of April and June 1970 were
associated with the claims file in June 1997. The reports
show that the veteran was assigned to the 661st Ord Co on
April 20, 1997.
In a letter dated in July 1997, the veteran was asked to
provide additional information concerning his medical
treatment and any stressor incidents while in Vietnam.
VA medical records associated with the claims file in July
1997 show that the veteran was admitted to various medical
facilities for treated of polysubstance abuse between
February and July 1997. The various diagnoses included
Benzodiazepine dependence, polysubstance dependence with
alcohol and cocaine, bipolar disorder, and history of
borderline personality disorder, antisocial personality
disorder, and PTSD.
Copies of unit morning reports from the 661st Ordnance
Company for the months of May and September 1970, were
received in November 1997.
In August 1998 the veteran was found by the RO to be
incompetent to handle financial matters.
Copies of VA and contract nursing home medical records
associated with the claims file in May 1999, show treatment
for physical and psychiatric problems from June 1997 to May
1999. The records do not contain any specific findings or
discussion of stressors relating to Vietnam, and no diagnosis
of PTSD.
At the direction of the Board remand in February 1996, the
veteran was afforded a VA psychiatric examination in June
1999, to determine if he had PTSD. The examiner indicated
that he had reviewed the entire three-volume claims file in
connection with his examination of the veteran. During the
interview, the veteran reported that his duties in Vietnam
included being a truck driver and pulling gate guard duty.
The veteran specifically denied ever having been in any
combat and was unable to identify any particular stressful
situation while in Vietnam. The examiner noted that the
veteran talked about a "yellow helicopter" but was not
clear as to what was happening to the helicopter or what his
role was in that situation. When asked if he had any
problems over the years directly as a result of his Vietnam
experiences, the veteran did not identify any particular area
such as recollections of any specific traumatic experiences,
nightmares, or flashbacks. The veteran reported a long
history of psychiatric and substance abuse problems and
indicated that his psychiatric problems and hospitalizations
were precipitated by problems with a girlfriend.
On mental status examination, the veteran had poor eye
contact and was visibly anxious, tense, and somewhat mildly
agitated. He answered questions appropriately but became
impatient. His speech was focused, but he tended to skip
from one topic to another. His voice had normal tone and
volume, and there was no evidence of active suicidal or
homicidal ideations, plans, or tendencies. His thoughts were
disorganized and rather tangential. There were no looseness
of association or flight of ideation. There was no evidence
of auditory or visual hallucinations, though the veteran
reported that he was paranoid and suspicious of people for
many years. His affect was blunted and his mood was tense,
anxious, and rather angry. The veteran denied any problems
sleeping, or any nightmares or dreams. His memory for remote
events was okay, but his recent memory was impaired. The
veteran's attention span was severely impaired and affected.
His judgment was appropriate but his insight into his mental
illness was limited. The diagnoses on Axis I included
alcohol dependence in a controlled environment; opiate and
cocaine dependence in remission; and psychosis, not otherwise
specified.
The examiner commented that after reviewing the entire record
and examining the veteran, he did not see any evidence to
support the diagnosis of PTSD. The examiner noted that the
veteran denied ever having been in combat, was unable to
identify any particular unusual stressors in Vietnam, denied
experiencing any recollections or nightmares, and had no
sleep difficulties. The examiner concluded that the veteran
suffered from a psychosis, not otherwise specified.
Analysis
In order for consideration to be given to a claim of
entitlement to service-connection, there must be a showing
that a particular injury or disease resulting in disability
was incurred in or aggravated by service. 38 U.S.C.A. § 1110
(West 1991).
In adjudicating a claim for service connection for PTSD, the
Board is required to evaluate the supporting evidence in
light of the places, types, and circumstances of service, as
evidenced by the veteran's military records, and all
pertinent medical and lay evidence. 38 U.S.C.A. § 1154(b);
38 C.F.R. § 3.304(f) (1999); see also Hayes v. Brown, 5 Vet.
App. 60, 66 (1993).
Prior to March 7, 1997, the following regulations were in
effect pertaining to PTSD.
(f) Post-traumatic stress disorder.
Service connection for post-traumatic
stress disorder requires medical evidence
establishing a clear diagnosis of the
condition, credible supporting evidence
that the claimed inservice stressor
actually occurred, and a link,
established by medical evidence, between
current symptomatology and the claimed
inservice stressor. If the claimed
stressor is related to combat, service
department evidence that the veteran
engaged in combat or that the veteran was
awarded the Purple Heart, Combat
Infantryman Badge, or similar combat
citation will be accepted, in the absence
of evidence to the contrary, as
conclusive evidence of the claimed
inservice stressor. Additionally, if the
claimed stressor is related to the
claimant having been a prisoner-of-war,
prisoner-of-war experience which
satisfies the requirements of § 3.1(y) of
this part will be accepted, in the
absence of evidence to the contrary, as
conclusive evidence of the claimed
inservice stressor.
38 C.F.R. § 3.304(f) (as in effect prior to March 7, 1997).
In June 1999, revised regulations concerning post traumatic
stress disorder were published in the Federal Register which
reflected the decision in Cohen v. Brown, 10 Vet. App. 128
(1997). The regulations were made effective from the date of
the Cohen decision. The regulations provide as follows:
(f) Post-traumatic stress disorder.
Service connection for post-traumatic
stress disorder requires medical evidence
diagnosing the condition in accordance
with Sec. 4.125(a) of this chapter; a
link, established by medical evidence,
between current symptoms and an in-
service stressor; and credible supporting
evidence that the claimed in-service
stressor occurred. If the evidence
establishes the veteran engaged in combat
with the enemy and the claimed stressor
is related to this combat, in the absence
of clear and convincing evidence to the
contrary, and provided that the clamed
stressor is consistent with the
circumstances, conditions, or hardships
of the veteran's service, the veteran's
lay testimony alone may establish the
occurrence of the claimed in-service
stressor. If the evidence establishes
that the veteran was a prisoner-of-war
under the provisions of Sec. 3.1(y) of
this part and the claimed stressor is
related to that prisoner-of-war
experience, in the absence of clear and
convincing evidence to the contrary, and
provided that the claimed stressor is
consistent with the circumstances,
conditions, or hardships of the veteran's
service, the veteran's lay testimony
alone may establish the occurrence of the
claimed in-service stressor.
38 C.F.R. § 3.304(f) (as in effect from March 7, 1997).
As the new regulations merely codified an existing Court
decision which the RO was bound by, there is no need to
Remand this case to the RO for consideration of the revised
regulations.
Likewise, the Board notes that while the evidentiary record
indicates that the veteran has been in receipt of
Supplemental Security Income benefits from the Social
Security Administration. Copies of the award decision or the
medical records relied upon in granting the benefit are not
of record. In a statement received in March 1996, the
veteran stated that all of his medical treatment was provided
by VA. As all VA medical records have been obtained, the
Board finds that remanding the appeal to obtain the SSA
records would serve no useful purpose and would not change
the outcome of the veteran's claim.
As an initial matter, the Board finds that the veteran's
claim for service connection for PTSD is well grounded. The
veteran has a medical diagnosis of the disability; there is
lay evidence of stressors in service, which is presumed
credible for the purpose of determining whether his claim is
well-grounded; and a medical professional has connected his
current disability to his service, again presuming the
credibility of the stressors he has recounted. Cohen v.
Brown, 10 Vet. App. 128 (1997).
If the veteran satisfies the initial burden of setting forth
a well-grounded claim, VA is required to assist in developing
the facts pertinent to that claim. 38 U.S.C.A. § 5107(a)
(West 1991); Zarycki v. Brown, 6 Vet. App. 91, 96 (1993). In
this case, the veteran was afforded VA examinations, all VA
medical records have been obtained, and the RO has obtained a
report from USASCRUR. The veteran also provided testimony
before the undersigned member of the Board sitting at the RO
in February 1994. Therefore, the Board finds that the record
is complete and that there is no further duty on the part of
VA to assist the veteran in developing his well-grounded
claim, as mandated by 38 U.S.C.A. § 5107(a).
One of the elements required to support a claim of service
connection for PTSD is credible evidence that an in-service
stressor occurred. As noted above, the evidentiary record
includes several diagnoses of PTSD. However, an opinion by a
mental health professional based on a post-service
examination of the veteran cannot be used to establish the
occurrence of the stressor, and the veteran's lay testimony
regarding stressors is insufficient, standing alone, to
establish service-connection. Moreau v. Brown, 9 Vet.
App. 389 (1996); Doran v. Brown, 6 Vet. App. 283 (1995).
Moreover, those instances were a diagnosis of PTSD was
offered was based on the veteran's self-described history of
having been in combat in Vietnam, presented during a combat
situation. The evidentiary record, including the veteran's
personnel records as well as his own testimony that he was
not in combat, clearly demonstrate that he did not engage in
combat with the enemy. Therefore, the Board is not bound to
accept a diagnosis based solely on an unsubstantiated history
as provided by the veteran. Wood v. Derwinski, 1 Vet. App.
190 (1990).
The veteran's military personnel records indicate that his
duty assignment while in Vietnam was that of an ammo store
helper. The Board previously remanded the appeal to the RO
in order to allow the veteran an opportunity to submit
additional evidence. Several letters sent to the veteran,
the most recent in July 1997, requested that he provide
detailed information concerning his stressors in Vietnam.
The Board notes that at least one of the veteran's stressors
involving the death of three fellow serviceman is clearly
verifiable. However, the veteran has not submitted any
details permitting verification. In reviewing the evidence
of record, the Board notes that the veteran's duties in
Vietnam were not combat related and his work details did not
necessitate exposure to combat. Furthermore, the veteran was
not awarded any medals for valor or any citations indicating
that he was exposed to situations involving combat.
Since the veteran did not engage in combat with the enemy,
his bare allegations of service stressors are insufficient;
the stressors must be corroborated by official service
records or other credible supporting evidence. Zarycki v.
Brown, 6 Vet. App. 91 (1993); Doran v. Brown, 6 Vet. App. 283
(1994). The veteran's official service records do not verify
the alleged stressors, and he has not provide detailed
information, as requested by the RO on numerous occasions
during the pendency of this appeal, which could be used to
attempt verification of the alleged stressors through
USASCRUR or unit records. Without such information, there is
nothing the VA can do to assist with verification of
stressors. The duty to assist is not a one-way street.
Furthermore, there is no medical evidence of a clear
diagnosis of PTSD based on any recognized stressor and the
constellation of symptoms associated with that disorder. In
fact, the VA psychiatrist that examined by the veteran in
June 1999 concluded that the veteran did not have PTSD.
Inasmuch as there is no credible supporting evidence to
corroborate the occurrence of the alleged stressors, the
preponderance of the evidence is against the claim and it
must be denied.
ORDER
Service connection for PTSD is denied.
N. R. Robin
Member, Board of Veterans' Appeals